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Hon Justice Baragwanath
SECURING PUBLIC CONFIDENCE IN THE LAW and the administration of justice is fundamental; it requires laws that are and are seen by all New Zealanders to be fair and workable. We seek to recognise these basics in applying our test for work proposals – that the project
1 is of highest priority in improving New Zealanders’ condition of life; and
2 is better performed by the Commission than others.
Access to Justice, researched from the standpoint of New Zealand women, is directed at the fundamentals of the operation of the rule of law. It includes lessons from the experience of Mäori women; as with projects in Alternatives to Prosecution, Mäori Custom Law and Coroners it will seek to contribute to good race relations through sound lawmaking. The final report on Juries will include empirical research into how the jury system is operating.
The clash of competing values exposed by the reports on Witness Anonymity (NZLC R42) and Compensation for Wrongful Conviction or Prosecution (NZLC PP31) presents formidable challenge to any system of law, revealing yet again the law’s function of providing social stability and balancing freedom and constraint in a principled fashion.
In Habeas Corpus: Procedure (NZLC R44) we removed the barnacles from the constitutional measures that are of regular application, yet require recourse to English practice and to eighteenth-century statutes. In Some Insurance Law Problems (NZLC R46) we proposed that insurers must be more specific in their proposals if they wish to rely on non-disclosure to avoid a policy, removing unfairness to insurers in the treatment of claims made policies, and providing a more specific test of whether an increased risk exclusion should apply. This is an eclectic collection of very different cases; each illustrates the role of the Commission in improving our law.
That role is continuing with our current work. Our project concerned with Systematic Protection of the Public has its genesis in the Cave Creek disaster, which revealed a fundamental gap in our law: safeguarding the physical integrity of the citizen is a prime state responsibility which has never been substantially examined, although alluded to in the Commission’s earlier work on Accident Compensation.
Our major report on Evidence, which is close to completion, will bring order into the present ragbag of rules and legislation.
The need for our commercial law to keep pace with the demands of trade underlies Electronic Commerce and Cross Border Insolvency.
The expenditure of past surpluses requires us to operate within the limits of our annual grant. The need to live within a reduced income, although still substantial by overseas standards, has been turned to advantage in accelerating the changes in direction and pace that are constantly required for the Commission to keep sharply focused on the real issues. We record our appreciation of the support given to us by many, including the Minister of Justice to whom we report, and his officials, who recognise that our independent role requires us on occasion to support a different view from that which commends itself to the Government.
To work with Commissioners and staff of high quality is a privilege. We seek progressively to extend the vigorous inhouse debate and the experts, whose essential contribution I wish to acknowledge, to the public whom we serve. Exposure of our work through publication of preliminary papers, the media, and now the internet, provides ideas and criticism which significantly improve the quality of our advice.
I mention finally our pleasure that the need for a systematic approach to securing Parliamentary consideration of the Commission’s reports, usually incorporating draft bills, has been recognised by the Minister of Justice and the Leader of the House. We are confident that as a result the effectiveness of the Commission’s contribution to improving our law will be enhanced.
Justice Baragwanath continued to oversee this area of our work with assistance from senior researcher Padraig McNamara, and researcher Diana Pickard. In October we tabled Review of the Official Information Act 1982 (NZLC R40), a task that has occupied the time of a number of researchers over the past 5 years.
Treaty Making: Reform and the Role of Parliament (NZLC R45, 1997) was published in December 1997. This report forms part of the Commission’s ongoing work to increase awareness of New Zealand’s international obligations. The report recommended striking a new balance in the treaty making process by major changes to the way in which New Zealand commits itself to international treaties and gives effect to them in our law. It addressed the entire treaty making process from the treaty negotiation stage through to the means of best implementing treaty obligations in domestic legislation. Government amendments to the treaty making process, announced in December 1997 and adopted on a trial basis, were a step towards our recommended reforms. Researcher Diana Pickard played a significant role in this project.
Habeas Corpus: Procedure (NZLC R44) deals with the constitutional basics that require the safeguard of statutory confirmation for the procedures to challenge unjustifiable detention. The project was headed by Commissioner Dugdale with assistance from researcher Ross Carter.
Compensation for Wrongful Conviction or Prosecution (NZLC PP31) was our preliminary response to the issue of how systematic procedures can be established to deal with the exceptional, but uniquely troublesome, issue presented by such claims without unsettling the established procedures of the criminal law. Following public consultation we are currently preparing a final report. Justice Baragwanath was responsible for this project with assistance from Padraig McNamara.
Protection of the public from accidental harm resulting from systemic failure is a new project arising out of the work done in the aftermath of the Cave Creek disaster. One problem is that the Accident Compensation legislation, with its bar to damages claims, was enacted without the introduction of effective systems to promote safety which authors of the scheme had recommended. The Health and Safety in Employment Act 1992, while a major advance, leaves at risk wide areas of activity. We are satisfied that a more principled approach can be adopted without unravelling the ACC scheme. Our report will include the Legal Status and Liability of the Crown.
In New Zealand as elsewhere, there is increasing recognition that the complexity of modern society brings with it systems that require a systemic approach. The International Civil Aviation Organisation has expressed the view that if the lessons of Erebus had been learned the events of Bophal, Zeebrugge and Kings Cross might have been avoided. One may add Cave Creek. Writers such as James Reason of Manchester and Charles Billings of Ohio have pointed to the need for those at all levels of an organisation whose conduct can contribute to or avoid an accident to be provided with incentives to focus upon safety. Our work to date has received considerable support from the experts we have consulted here and abroad.
We are currently identifying the issues requiring consultation with those with responsibility in this sphere and with the public.
Judicial Review is another new project, dealing with statutory and judge-made procedures for enforcement of the rule of law. It will include consideration of the current anomalies within the Judicature Amendment Acts 1972 and 1977 and Part VII of the High Court Rules.
Commissioner Donald Dugdale is responsible for the Commercial team and has been assisted by researchers Ross Carter, Nick Russell, René Trussell-Cullen and Megan Leaf, and by Paul Heath QC, a consultant to the Commission.
The report on insurance law topics foreshadowed in our last annual report has been published: Some Insurance Law Problems (NZLC R46). A discussion paper, Repeal of the Contracts Enforcement Act 1956 (NZLC PP30), has also been published. There has been preliminary scoping work on an examination of the possible statutory rationalisation of remedies for loss of or damage to goods.
A draft report on defamation and qualified privilege, a response to Lange v Atkinson, has recently been circulated for comment. A preliminary paper will be issued shortly.
The work on schemes involving shared ownership of land has been divided into two separate projects. One is concerned with reforms to both the law under which the cross-lease device for shared ownership operates, and to the Unit Titles Act 1972. Under this project it is likely that we will recommend a new statute adopting overseas models and broadly analogous to the present unit titles legislation but making far more sophisticated provision for shared amenities. The other project, intended to proceed concurrently, is concerned with the marketing (including the application of the Securities Act 1978) and the prudential management of various shared ownership schemes such as retirement villages.
Under the supervision of Paul Heath QC, the Commercial team is engaged in a series of three reports in the area of international trade law, the first of which, due in September 1998, deals with electronic commerce. It will be circulated as part of the materials for the New Zealand Law Society conference, “Commerce and the Internet”, in November. Researcher Nick Russell is assisting in this report. Submissions on issues raised for discussion in the first report will be addressed in the second, which will also deal with domestic issues. A third report will be issued in early 1999 on international convention and model laws in international trade and commercial law, with a view to acceptance and implementation in New Zealand. Paul Heath is also leading work on cross-border insolvency, looking in particular at the UNCITRAL Model Law on Cross-Border Insolvency. This report will be discussed at the INSOL Pacific ’99 Conference in Auckland next February. Researchers Diana Pickard and Megan Leaf provided assistance in this area.
For the first part of the 1997/98 year the Commissioner responsible for Criminal Procedure was Les Atkins QC (now a judge of the District Court). He was succeeded by Commissioner Timothy Brewer, previously a consultant to the Commission, whose appointment took effect on 1 October 1997. The research team has consisted of senior researchers Christine Hickey and Susan Potter with support from researchers Brigit Laidler, Diana Pickard and Nick Russell. They were joined in early 1998 by Sharon Opai, a senior researcher working primarily with Commissioner Henare but seconded to the team to assist with the Alternatives to Prosecution project. A former Commissioner, Jim Cameron, acted as a consultant.
The work of the Criminal Procedure team has been divided between five main projects and a number of smaller ones. The main projects are:
The smaller projects which the Criminal Procedure team became involved in included work on the Community Magistrates Bill, the Crimes Amendment Act 1997, and assisting with Compensation for Wrongful Conviction or Prosecution (NZLC PP31).
Commissioner Judge Margaret Lee continued to lead the Evidence team with the assistance of senior researcher and policy manager Elisabeth McDonald, senior researchers David Calder (who also managed project planning) and Susan Potter, and researchers Diana Pickard, Karen Belt and Brigit Laidler. Judge Lee and Elisabeth McDonald were both seconded to the Commission for the project. With the project’s imminent completion they have both returned to their respective vocations: Elisabeth in April to Victoria University School of Law and Judge Lee to the Wellington District Court in May. Both have agreed to continue work to finalise the code by the end of 1998 and to advise the Commission on implementation of the code. We are delighted that Judge Lee will return to the Commission in October.
Highlights for the year included the Evidence team’s major role in the formulation of anonymous witnesses legislation in late 1997. Knowing that the government planned to fast-track legislation, a final report, Evidence Law: Witness Anonymity (NZLC R42), was published in October. Our recommendations were substantially the same as those proposed in a discussion paper of the same name (NZLC PP29). Members of the team were invited to make an oral submission to the Justice and Law Reform Select Committee considering the Evidence (Witness Anonymity) Amendment Bill.
For most of 1998 the team has been in the final stages of drawing together the strands of the evidence code. The original date for completion by the end of February 1998 had to be extended after the successful Evidence Code roadshow in March 1998. Funded by the New Zealand Law Foundation and administered by the New Zealand Law Society, the roadshow saw Judge Lee, Elisabeth McDonald and the project’s academic consultant, Associate Professor Richard Mahoney of the University of Otago, take the draft code to the five main centres with an invitation to members of the legal profession to help test the code in action. Comments and suggestions made by members of the profession during and after the roadshow were being incorporated into the proposed code as the 1997/98 year concluded. The final report will be issued at the end of 1998.
The Law Commission acknowledges the support of those practitioners, judges, academics, interested persons, and community groups who assisted the project during the year. It is especially grateful to Professor Mahoney, and the Commission’s Legislative Counsel, Garth Thornton QC.
Commissioner Donald Dugdale was responsible for bringing to a close a significant proportion of this project late in 1997. He was assisted by researcher Ross Carter. The final 6 months of 1997 saw three succession reports published and tabled in the House of Representatives: Homicidal Heirs (NZLC R38), A Succession (Adjustment) Act (NZLC R39), and A Succession (Wills) Act (NZLC R41).
In considering the work of the Succession team, the Commission has abandoned an earlier intention to modernise the Administration Act 1969. However, we are currently giving some thought to the time limit under the Administration Act 1969 s 47 now that the administration of estates has been so greatly simplified by the abolition of death duties. We may also consider how that section accords and operates with the Trustee Act 1956 s 35. The Commission also intends, at an appropriate time, to prepare a report on intestacy, although it seems sensible to delay this until Parliament settles the property entitlements of parties to de facto marriages.
Commissioner Denese Henare continues to guide te ao Mäori work. Commissioner Henare has been assisted by senior researchers Philippa McDonald and Sharon Opai, and by researchers Mäkere Papuni and Nigel Christie. The Treaty touches all of the Commission’s work and has implications in public law, criminal procedure and evidence law. Both Commissioner Henare and Sharon Opai have participated in work with a number of other agencies. In the area of succession law, specific research has been undertaken and a record of the points made at consultation hui with Mäori in 1995–1997 on succession law has been prepared and forwarded to marae and Mäori organisations. This draws together various themes relating to the law of succession affecting Mäori. Work on a general discussion paper reviewing the law as it applies to Mäori ancestral property is in progress.
At the consultation hui on the succession law project, Mäori expressed concern that practices under the Coroners Act 1988 were not responsive to Mäori cultural values. A draft discussion paper is being prepared to address these and other issues to ensure fair and just exercise of coronial powers.
A draft report looking at Justice: The Experience of Mäori Women is currently nearing completion and will be used for consultation with agencies in the justice sector. Following this round of consultation a final report will be published which will draw on the experiences of Mäori women. Specifically, it will examine the Treaty of Waitangi and identify some principles and processes to ensure justice sector agencies better understand and are responsive to the needs of Mäori women.
The Commission continues to carry out its project on Mäori Custom Law using funds provided by the New Zealand Law Foundation. To date academic commentary has been provided on a paper by Chief Judge Durie. Joe Williams and Whaimutu Dewes, with the guidance of the Mäori Committee, have identified some fundamental values of tikanga Mäori. The next stage in the project is to consider how judges and others dealing with issues of custom law should apply these values. These issues might arise when interpreting a statute or dealing with matters of procedure.
Te Kömiti Mäori
He Kömiti tënei i whiriwhiria hei hoa körero mo te Aka Matua o Te Ture mo ngä take Mäori, e pa ana ki ngä ture o te motu.
Ko te Aka Matua tëtahi o ngä röpu hanga ture mo te Käwanatanga.
I mahi tahi te Kömiti i te kai-komihana ko Denese Henare, a ka hono ai te Kömiti ki ngä röpu Mäori e mätua tonu ana i ngä take Mäori. Kei to whänui hoki ngä tohutohu o te Kömiti e pa ana ki ëtahi kaupapa nui, me ngä ähuatanga katoa o te Aka Matua o te Ture.
Koia nei ngä take i whaia e te Kömiti Mäori i te tau 1997:
Nä ngä tohutohu o te Kömiti, kua puawai ëtahi o ngä tipu o te Aka Matua o te Ture.
The Mäori Committee assists the Commission in addressing those aspects of its work which relate to te ao Mäori. The Committee works closely with Commissioner Denese Henare and facilitates linkages with other Mäori groups and individuals. Its advice is both specific (to particular projects) and general (to the Commission’s overall work).
In 1997 the Mäori Committee assisted with several projects including:
Advice from the Committee greatly assisted the Commission in meeting its objectives.
The Women’s Access to Justice project is led by Commissioner Joanne Morris OBE. Commissioner Henare is responsible for the Mäori dimension of the project.
Commissioner Morris was assisted by senior researcher and project manager Michelle Vaughan and by part-time research assistants Melanie Smith and Sarah McKenzie. Commissioner Henare was assisted by senior researchers Philippa McDonald and Sharon Opai and researcher Nigel Christie. Director Robert Buchanan also assisted in the formulation of drafts of the final reports.
During the year, the decision was taken to produce two final reports in the project: one examining barriers to New Zealand women’s access to legal services, the other exploring the basis of Mäori women’s concerns that the policies and practices of state sector justice agencies pay inadequate regard to the principles of the Treaty of Waitangi (see pages 8–9).
The project published its sixth and final miscellaneous paper, The Education and Training of Law Students and Lawyers (NZLC MP11) in September 1997. Since then, the information from the six papers and the responses made to them (163 written submissions and numerous further meetings with legal services providers) have been drawn together in a draft final report on legal services. The draft is now being refined and is primarily concerned with the responsiveness of the civil legal aid scheme, community-based legal services, and lawyers’ services to the diverse needs of New Zealand women. It will recommend:
to promote the just treatment of women by the legal system.
In addition to its own project work the Law Commission provides advice to select committees, government departments and agencies on a wide range of law reform proposals. One of the Commission’s statutory functions is to advise on the review of any aspect of the law of New Zealand conducted by government departments or organisations. The Commission’s developing links with government organisations, coupled with its statutory independence, allows it to provide well-informed and impartial advice. An important aspect of this work from the Commission’s perspective is that law reform proposals of other departments are often relevant to the Commission’s own project work.
During the year under review, advice was provided on the matters listed in appendix A. Many were in the area of commercial law (eg, participation in the Security Commission’s review of the Life Insurance Act 1908, the Ministry of Commerce’s review of penalties under the Commerce Act 1986, and advice to that Ministry on insolvency issues). The Commission also commented on various proposals by the Ministry of Justice including those relating to reserve jurors and sentencing policy; and made submissions to the Justice and Law Reform Committee on the Community Magistrates Bill 1997 and the Evidence (Witness Anonymity) Amendment Bill 1997, and to the Government Administration Committee on the De Facto Relationships (Property) Bill 1998. A full list of advisory work initiated or continued during the year, including work undertaken on behalf of the Legislation Advisory Committee, is contained in appendix A.
The Law Commission also continued to provide research support to the Legislation Advisory Committee (LAC) in discharging its function of reviewing legislation and advising select committees on matters of legislative policy. Due to the ongoing absence of a chairperson, responsibility for preparing submissions to select committees fell mostly upon the Commission’s research staff. As the role of the LAC continues to evolve, the Law Commission looks forward to continuing its involvement and to the appointment of a new chairperson.
In relation to insolvency issues, we have been asked to provide detailed advisory work to the Ministry of Commerce on the topic of preferential debts in insolvency regimes.
A further dimension of the Commission’s advisory work is the assistance it gives to Ministers, officials and select committees on the implementation of its own law reform proposals. A particular highlight in the year under review was the introduction of the Interpretation Bill 1997 based substantially on draft legislation contained in A New Interpretation Act: To Avoid “Prolixity and Tautology” (NZLC R17, 1990). Other work in this area is listed in appendix A.
As in the past few years, the Commission budgeted and operated at a deficit, funding the shortfall in revenue from its reserves. The Commission appreciates the contribution from the New Zealand Law Foundation for both the Mäori Custom Law project and the touring of the draft Evidence Code.
The financial statements are set out on pages 17–28.
During the year, the finance and administration functions, the library services and the project management functions were restructured into a corporate services division.
Some of the achievements during the year included:
These changes have improved the efficiency of our research management and contact management and enabled better utilisation of available research resources (in both traditional and electronic form).
Te Aka Körero, our quarterly newsletter, remains central to the Commission’s communications strategy. Having run to nine issues it is now available on the Commission’s internet site. We are currently refining the manner in which we publish material in electronic form, and hope to be able to reduce the size of our paper print runs and put money saved to other uses. Printouts of the newsletter will be supplied upon request.
During the year the Commission was pleased to receive visits from the Rt Hon Dr David Clark, Chancellor of the Duchy of Lancaster; the deans and academic staff from the New Zealand law schools; and in February, His Excellency Cao Qing-ze, Minister of Supervision of the People’s Republic of China.
Justice Baragwanath sits regularly in the High Court at Auckland. In September 1997 he delivered a paper “The Impact in New Zealand of Human Rights Legislation” to the Australasian Law Reform Agencies Conference in Melbourne. He has spoken regularly on the Commission’s work. His addresses have included “Indigenous Rights and the Treaty; the international position: how we deal with them” (Whitireia Polytechnic), “A Constitutional Aspect of the Future of Policing in New Zealand” (Auckland Council of Civil Liberties), “Does the Law Protect the Criminal at the Expense of the Victim?” (Rotary Club of Wellington), “How Can the Law Contribute to an Equal and Just Society?” (Gay Association of Professionals), “Human Rights Legislation in New Zealand: the Tensions of Judicial Review in Human Rights” (Third Annual Administrative Law Conference) and “The Judiciary and the Fourth Estate” (Commonwealth Press Union). He is one of the advisors to the project “A New New Zealand Jurisprudence” at the University of Waikato.
Commissioner Morris has continued to be involved in gender education for New Zealand judges and other adjudicators. In September 1997, she led the half-day gender issues component of the Tenancy Tribunal adjudicators’ annual general meeting. In March 1998, she was a presenter and facilitator in the gender component of the annual orientation programme for recently appointed judges. In December 1997 she published “Women’s Experiences of the Justice System” (1997) VUWLR 649. Commissioner Morris has some continuing responsibilities to the Waitangi Tribunal, of which she was a member until 1996.
Commissioner Dugdale attended the Eighth Annual Journal of Contract Law Conference in August. His observations at the conference were subsequently published in the Business Law Quarterly ((1998) 4 NZBLQ 41) and in the Journal of Contract Law ((1998) 13 JCL 39). His address “Legislating for Quasi-Connubiality” to the annual general meeting of the Legal Research Foundation in October was subsequently published in the New Zealand Law Journal ([1998] NZLJ 123). He has addressed various other gatherings during the year on aspects of the Commission’s work. He continues as a contributor to Gault on Commercial Law (Brooker’s, Wellington).
Commissioner Denese Henare is a Director of Tainui Corporation Limited and is the Convener of the Working Party establishing the Waikato Endowed College at Hopuhopu. She was a director of the Transitional Health Authority until December 1997. Commissioner Henare is one of the advisers to the project “A New New Zealand Jurisprudence” at the University of Waikato. In August 1997, she presented a paper to a Wellington seminar, “The Draft Declaration on the Rights of Indigenous Peoples: Implications for New Zealand and Internationally”, on behalf of the New Zealand branch of the International Law Association and the New Zealand section of the International Commission of Jurists. Commissioner Henare also delivered papers to the Rahiri Lecture Club, Auckland (Women’s Association), “The Treaty Claims Process – What it Means”, and to Te Oru Rangahau, Research and Mäori Development Conference, School of Mäori Studies, Massey University, on “The Law of Difference – Will it Make a Difference?”, and has contributed to the Mäori Statistics Forum.
Part-time consultant Paul Heath was convenor of the New Zealand Law Society’s Commercial and Business Law Committee until 1 April 1998, and is a New Zealand Law Society representative on the Company Law Monitoring Group. He continues to be a member of the Joint New Zealand Law Society/Institute of Chartered Accountants of New Zealand Joint Insolvency Committee which will consider changes to the law of insolvency as the Ministry of Commerce develops policy. In addition he has delivered and published papers on electronic commerce and international insolvencies: “A Legal Infrastructure for Electronic Commerce?” (1998) 7 Canta LR No 1; “International Insolvencies: a New Zealand Perspective” (1998) 6 Insolv LJ 90.
Christine Hickey, a senior researcher in the criminal team, was appointed by the Minister of Justice in March 1998 to the Wellington District Legal Services Committee to represent the interests of community law centres.
Sharon Opai, a senior researcher, continues her work as a member of the Casino Control Authority.
Nick Russell, a researcher in the evidence and commercial law areas, was admitted as a barrister and solicitor in September 1997.
Our library manager, Judith Porter, and computer system administrator, Serena Barrett, are both involved in the Justice Sector Information Strategy: Judith as a member of the Sharing Library Resources Working Group and Serena as a member of the Information Management Policies for the Justice Sector Working Group.
At the end of August 1997, after a term of 5 years, Les Atkins QC left the Law Commission to return full-time to his Palmerston North practice. He oversaw four major publications (the Police Questioning report, and papers on privilege against self-incrimination, and the prosecutions and jury systems), and contributed to many others, including some of the evidence papers. The work on the jury system was of special interest to him. Recently he was appointed to the District Court bench.
Our Director of 3 years, Robert Buchanan, left in April 1998 to take up a position with the Auditor-General as Assistant Auditor-General (Legal). As Director, Robert was responsible for the smooth link between our law reform role and its administrative functions.
During the year ten research staff members left the Commission: David Calder, Ross Carter, Nigel Christie, Loretta Desourdy, Brigit Laidler, Elisabeth McDonald, Philippa McDonald, Mäkere Papuni, René Trussell-Cullen, and Michelle Vaughan. Each made a valuable and distinctive contribution to the Commission and its work. Their contributions are acknowledged with thanks.
Katrina Young-Drew, our library manager for 9 years left in September 1997. Other members of the corporate services staff to leave during the year were Christine Kleingeld, our senior PA and secretarial coordinator, and our library student assistant, Ron McIntosh.
The contribution of all to the work of the Commission during their respective times here has been greatly valued. They leave behind many friends at the Commission and we extend our sincere gratitude to them all.
A full list of current members and staff appears at appendix B.
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